82 F.

3d 409

NOTICE: Fourth Circuit Local Rule 36(c) states that citation

of unpublished dispositions is disfavored except for establishing
res judicata, estoppel, or the law of the case and requires
service of copies of cited unpublished dispositions of the Fourth
Circuit.
ESTATE of Melvin R. WILSON, Plaintiff-Appellant,
v.
UNITED STATES of America, Defendant-Appellee.
No. 95-1003.

United States Court of Appeals, Fourth Circuit.

Argued March 7, 1996.
Decided April 15, 1996.

E.D.Va.
AFFIRMED.
Appeal from the United States District Court for the Eastern District of
Virginia, at Alexandria. T.S. Ellis, III, District Judge. (CA-94-101)
ARGUED: Hunter Craycroft Harrison, Jr., McLean, Virginia, for
Appellnt. Dennis Edward Szybala, Assistant United States Attorney,
Alexandria, Virginia, for Appellee. ON BRIEF: Helen F. Fahey, United
States Attorney, Alexandria, Virginia, for Appellee.
Before RUSSELL and WILKINS, Circuit Judges, and CHAPMAN,
Senior Circuit Judge.
OPINION
PER CURIAM:

Melvin R. Wilson's wife brought this medical malpractice action on behalf of

his estate (the Estate) under the Federal Tort Claims Act (FTCA), as amended,
28 U.S.C.A. 1346(b), 2671-2680 (West 1993), alleging that physicians at

the Hunter Holmes McGuire Medical Center (the McGuire Center), a hospital
operated by the United States Department of Veterans Affairs, caused Wilson's
death by negligently failing to diagnose his lung cancer. The district court
entered judgment in favor of the Government following a trial without a jury,
and the Estate appeals. We affirm.
I.
2

Wilson underwent surgery for duodenal ulcers at the McGuire Center in

August 1989. In preparation for the procedure, two chest x-rays were taken,
neither of which showed any evidence of lung cancer. And, two post-operative
visits to the McGuire Center during 1989 revealed that Wilson was
recuperating from the surgery without complication. Subsequently, in June and
July 1990, Wilson returned to the McGuire Center complaining of stomach
pain and vomiting. An examination revealed no active ulcer disease. He was
given gastric medication and released. Wilson failed to keep a follow-up
appointment in October 1990.

He next visited the McGuire Center in October 1991, suffering pain in his left
hip, leg, and foot. Wilson was treated and instructed to return in two weeks, at
which time he was admitted. Physicians determined that Wilson's symptoms
were caused by a narrowing of the iliac artery and that surgery was
unnecessary. Consequently, he was released with medication for his circulatory
problem. Shortly thereafter, Wilson was diagnosed with lung cancer following
his emergency admission to another hospital with complaints of slurred speech
and numbness on his right side. He was transferred to the McGuire Center,
where physicians determined that his condition was terminal. Wilson died
approximately three weeks later.

The Estate instituted this FTCA suit, claiming that the physicians at the
McGuire Center negligently failed to diagnose the lung cancer, thereby
depriving Wilson of a substantial possibility of a cure. Wilson's wife testified at
trial that during his visits to the McGuire Center, Wilson made numerous
complaints that the physicians failed to investigate or, in some instances, to
enter in his medical records. The Estate also presented expert testimony that
physicians at the McGuire Center breached their duty of care* by failing to
investigate adequately Wilson's complaints and that physicians at hospitals
maintained by the Department of Veterans Affairs were interested only in
diseases related to military service. In response, the Government presented the
testimony of two doctors who, based on the medical records, opined that the
physicians at the McGuire Center complied with the standard of care and that
Wilson's lung cancer either was not present or was not detectible until long after

his July 1990 visit. They also testified that the circulatory problems Wilson
suffered in 1991 were unrelated to his cancer.
5

At the close of the evidence, the district court entered judgment for the
Government, concluding that the Estate had not proven that the physicians at
the McGuire Center breached the standard of care. The court also determined
that the Estate had failed to establish proximate causation because it found that
Wilson's lung cancer developed after he was examined at the McGuire Center
in July 1990.

II.
6

The Estate maintains that the district court erred in permitting the Government's
two expert witnesses to testify. It claims that under the law of Virginia these
doctors were not competent to render an opinion on the standard of care. See 28
U.S.C.A. 1346(b); Va.Code Ann. 8.01-581.20(A) (Michie 1992). The
Government, however, asserts that the provisions of Virginia law concerning
expert qualification are inapplicable in this FTCA action and that, instead,
Federal Rule of Evidence 702 controls the admission of expert testimony. We
need not resolve which standard governs the admission of this testimony
because our review of the record convinces us that under either analysis, the
district court did not abuse its discretion in allowing the testimony. See Scott v.
Sears, Roebuck & Co., 789 F.2d 1052, 1055 (4th Cir.1986) (decision whether
to admit expert testimony is reviewed for abuse of discretion under Rule 702);
Henning v. Thomas, 366 S.E.2d 109, 112 (Va.1988) (appellate court reviews
admission of expert testimony under Va.Code Ann. 8.01-581.20(A) for an
abuse of discretion).

III.
7

The Estate also argues that it proved proximate causation because it showed
that Wilson was deprived of a "substantial possibility of survival." Hicks v.
United States, 368 F.2d 626, 632 (4th Cir.1966). We disagree. The district court
properly concluded that the Estate was required to establish that an
investigation of Wilson's complaints more likely than not would have revealed
lung cancer and that if the cancer had been detected, Wilson probably would
have survived. See Hurley v. United States, 923 F.2d 1091, 1093-95 (4th
Cir.1991) (interpreting the phrase "substantial possibility" from Hicks as
"tantamount to a probability")(internal quotations marks omitted); see also
Griffett v. Ryan, 443 S.E.2d 149, 152 (Va.1994) (concluding that plaintiff
demonstrated proximate causation when trial testimony established that a high
likelihood existed that an operation at the time the physician breached his duty

of care would have resulted in the patient being saved).

IV.
8

We have reviewed the remainder of the Estate's arguments and conclude that
they are without merit. Consequently, we affirm the judgment of the district
court.

AFFIRMED.

The parties agreed before trial that the relevant standard of care was that of a
primary care provider